Koerber v. Veritas CA2/3

Filed 9/29/20 Koerber v. Veritas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

KIMBERLY KOERBER, B291770

Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC649878
v.

PROJECT VERITAS,

Defendant and Respondent.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Elizabeth R. Feffer, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-
Lewis and Timothy D. Rand-Lewis for Plaintiff and Appellant.
Litchfield Cavo, G. David Rubin and Elizabeth M.
Sanguinetti for Defendant and Respondent.
_______________________________________
 INTRODUCTION

This is the third appeal in plaintiff Kimberly Koerber’s
lawsuit against defendant Project Veritas. (See Koerber v. Project
Veritas (Sept. 26, 2019, B287742 [nonpub.]) (Koerber I); Koerber
v. Project Veritas (Jan. 7, 2020, B285592) [nonpub.] (Koerber II).)
In Koerber I, we affirmed the trial court’s order granting Project
Veritas’s special motion to strike all causes of action against it in
the operative first amended complaint under Code of Civil
Procedure1 section 425.16 (anti-SLAPP statute). In Koerber II, we
dismissed as moot Koerber’s appeal from the court’s orders
granting motions to quash service of summons and the original
complaint on Project Veritas and other defendants.
In this appeal, Koerber challenges the court’s postjudgment
order awarding Project Veritas $63,970 in attorney fees related to
the anti-SLAPP motion and denying Koerber’s motion to tax
$1,680.13 in costs requested by Project Veritas. We affirm.

BACKGROUND2

Koerber worked for Cengage Learning, Inc. and Cengage
Learning Holdings II, Inc. (collectively, Cengage), selling
“National Geographic materials.” Cengage fired Koerber in
January 2016 after Project Veritas published footage of a secretly
recorded interview in which Koerber made disparaging remarks
about opponents of the Common Core curriculum, Republicans,
Texas school administrators, and the Second Amendment.

1All undesignated statutory references are to the Code of Civil
Procedure.
2 A more detailed summary of the factual and procedural background
of this case is included in Koerber I and Koerber II.

2
 In February 2017, Koerber sued Project Veritas, Cengage,
and other defendants for numerous claims arising out of Project
Veritas’s secret recording, editing, and publishing of Koerber’s
interview and Koerber’s subsequent employment termination.
The operative first amended complaint asserted 23 claims,
including 11 causes of action against Project Veritas for, among
other things, invasion of Koerber’s privacy.
In October 2017, Project Veritas filed a demurrer and an
anti-SLAPP motion attacking the first amended complaint.3 In its
anti-SLAPP motion, Project Veritas argued Koerber’s claims
arose out of the organization’s protected free-speech activity, that
Koerber’s claims were time-barred, and that Koerber could not
demonstrate a probability of success on any of her claims.
In late November 2017, Koerber opposed Project Veritas’s
motion. Project Veritas filed a reply as well as 100 objections to
Koerber’s declaration filed in support of her opposition.
The court heard arguments on Project Veritas’s anti-
SLAPP motion in December 2017 and took the matter under
submission. In mid-January 2018, the court issued a written
ruling on the motion. Before reaching the merits, the court
sustained more than 60 of Project Veritas’s objections to
Koerber’s declaration. The court then granted the motion, finding
Project Veritas’s challenged conduct was protected journalistic
and reporting activity under the anti-SLAPP statute and that, in
any event, Koerber failed to show a probability of prevailing on

3The record on appeal does not include copies of the demurrer, the
anti-SLAPP motion, or any of the related filings, such as Koerber’s
opposition to the anti-SLAPP motion, Project Veritas’s objections, and
Project Veritas’s reply. Koerber has not requested that we take judicial
notice of any of the records from her prior appeals.

3
any of her claims. Koerber appealed from the court’s order
granting the anti-SLAPP motion, which we affirmed in Koerber I.
In late January 2018, Project Veritas filed a memorandum
of costs. The organization asked the court to award it $1,680.13
in costs, consisting of $595 for filing and motion fees related to
the anti-SLAPP motion and the demurrer, $830 for court reporter
fees for two hearings in December 2017, and $255.13 for attorney
service charges. Koerber filed a motion to tax costs. She argued
the court should tax the portion of the requested filing and
motion fees pertaining to Project Veritas’s demurrer. She also
argued the court should tax all the requested court reporter fees
and attorney services charges, claiming recovery of those
expenses was not authorized by statute.
In March 2018, Project Veritas filed a motion for attorney
fees and costs under section 425.16. It sought $109,545 in fees for
the work of three attorneys at Litchfield Cavo, LLP (Litchfield
Cavo), the firm representing the organization in this lawsuit. The
$109,545 total was based on the following figures: (1) 269.30
hours spent litigating the anti-SLAPP motion and drafting and
researching the demurrer, with 66.9 of the hours billed at $250
per hour and 202.4 of the hours billed at $200 per hour, for a
total of $57,205; and (2) 73.5 hours in billed and anticipated time
spent litigating the fees motion, with 22.5 of the hours to be billed
at $250 per hour and 51 of the hours to be billed at $200 per
hour, for a total of $15,825. Project Veritas asked the court to
apply a multiplier of 1.5 to the $73,030 in billed and anticipated
fees, for a total of $109,545.
In support of its motion, Project Veritas submitted, among
other things: (1) declarations executed by two of Project Veritas’s
attorneys detailing the hours spent on the demurrer, the anti-

4
SLAPP motion, and the fees motion, as well as additional time
the attorneys anticipated litigating the fees motion; (2) billing
statements documenting the hours spent on those matters; and
(3) a declaration from Koerber’s counsel in which she testified
that her billing rate of $450 per hour, which was $200 higher
than the highest billing rate charged by Project Veritas’s counsel,
was “ ‘substantially less than other attorneys with comparable
experience.’ ” In one of the supporting declarations, a Project
Veritas attorney explained that he had redacted several entries
in the attached billing statements because they referred to: (1)
irrelevant matters that were not included in the amount of the
fees request; or (2) privileged attorney-client communications. As
for the irrelevant material, counsel completely redacted it from
the billing statements and, as for the privileged material, counsel
redacted only the portions of the entries containing protected
attorney-client information. Koerber opposed the fees motion.
In April 2018, the court ordered Project Veritas to “review
and revise the memorandum of costs and attorney fees motion by
category with more specificity,” including separating “out the fees
incurred solely in connection with the demurrer.” In response,
Project Veritas filed a supplemental brief and additional
declarations and exhibits further detailing its fees request. The
organization provided the following breakdown of hours spent on
the various matters addressed in its fees motion: (1) 146.2 hours
spent on strictly anti-SLAPP related matters; (2) 9.1 hours spent
on matters related to both the anti-SLAPP motion and the
demurrer; (3) 54.4 hours spent on the demurrer only; (4) 51.4
hours spent on ex parte requests related to the anti-SLAPP
motion; (5) 87.8 hours spent, or anticipated to be spent, on the
fees motion (with 14 of the hours constituting time spent on the

5
supplemental brief); and (6) 5.3 hours related to miscellaneous
fees concerning the anti-SLAPP motion. Koerber filed a
supplemental opposition.
In July 2018, the court denied Koerber’s motion to tax costs
and awarded Project Veritas $1,680.13 in costs. The court also
granted Project Veritas’s fees motion and awarded the
organization $63,970 in fees, accounting for all the time spent
litigating the anti-SLAPP and fees motions, without any
multiplier to increase the award, but excluding the time spent
researching and drafting the demurrer. The court found the
amount of hours spent litigating the anti-SLAPP and fees
motions and the hourly rates charged by Project Veritas were
reasonable, noting the complexity, difficulty, and time-consuming
nature of the issues related to the anti-SLAPP motion.
Koerber timely appealed.
DISCUSSION

1. The Attorney Fees Award
Koerber challenges the court’s order awarding Project
Veritas attorney fees on numerous grounds. As we explain,
Koerber’s arguments lack merit.
1.1. Applicable Law and Standard of Review
A defendant who prevails on an anti-SLAPP motion is
entitled to an award of attorney fees and costs “incurred in
connection with” the anti-SLAPP motion. (569 E. County
Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6
Cal.App.5th 426, 432; see also § 425.16, subd. (c)(1).) Thus, a
prevailing defendant may recover all fees incurred in litigating
the anti-SLAPP motion, plus fees incurred in responding to an
appeal from an order granting an anti-SLAPP motion or in

6
litigating the fee award itself. (Wanland v. Law Offices of
Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21
(Wanland).) The fee award should not, however, compensate the
defendant for fees unrelated to the anti-SLAPP motion, such as “
‘attacking service of process, preparing and revising an answer to
the complaint, [or] summary judgment research.’ [Citation.]”
(Backcountry, at p. 433.) “In short, the award of fees is designed
to ‘ “reimburs[e] the prevailing defendant for expenses
incurred in extracting herself from a baseless lawsuit” ’ [citation]
rather than to reimburse the defendant for all expenses
incurred in the baseless lawsuit.” (Ibid.)
In determining the amount of the fees to award, the court
should utilize the “lodestar adjustment method.” (Nichols v. City
of Taft (2007) 155 Cal.App.4th 1233, 1239–1240 (Nichols).) To
calculate the “lodestar” figure, the court must determine the
amount of hours reasonably spent on the anti-SLAPP-related
matters and multiply that number by the prevailing hourly rate
for other private attorneys in the same community performing
similar, noncontingent litigation. (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1133.)
Because the trial court is most familiar with the litigation
and in the best position to determine the value of the legal
services rendered in the case, we will not disturb the court’s
decision to award attorney fees unless we are convinced that
decision is clearly wrong—i.e., an abuse of discretion. (Nichols,
supra, 155 Cal.App.4th at p. 1239.) “The appellant challenging
the award ‘bear[s] the burden of affirmatively establishing that
the trial court abused its discretion.’ [Citation.] As with most trial
court orders, we ‘ “presume the trial court’s attorney fees award

7
is correct.” ’ [Citation.]” (In re Marriage of Minkin (2017) 11
Cal.App.5th 939, 954 (Minkin).)
1.2. Koerber has not shown the court abused its
discretion in awarding Project Veritas attorney
fees.
Koerber first contends the court should have denied Project
Veritas’s attorney fees motion because it was not supported by
competent evidence. According to Koerber, Project Veritas failed
“to provide a competent breakdown of the time actually spent on
the anti-SLAPP motion, improperly combined matters unrelated
to the anti-SLAPP motion, and sought duplicative time, all
totaling over 269 hours ‘in connection’ with its anti-SLAPP
motion.” This argument is conclusory and undeveloped.
In claiming Project Veritas’s fees motion was not supported
by the evidence, Koerber makes only a broad assertion that the
evidence was incompetent, without any detailed analysis or
citations to relevant authority. As we discussed above, Project
Veritas submitted numerous pieces of evidence to support its fees
motion, including declarations from the attorneys who worked on
the anti-SLAPP and fees motions explaining the work they
performed on those matters, billing records pertaining to work
related to those matters, and spreadsheets explaining how that
work was distributed among the anti-SLAPP and fees motions
and other matters. To show the court abused its discretion in
awarding Project Veritas fees, Koerber needed to do more than
make a bare assertion that the supporting evidence was
incompetent. Instead, she was required to demonstrate through
reasoned argument and citations to relevant authority why the
evidence was incompetent such that the court’s calculation of the
fees award was so arbitrary that it shocks the conscience or lacks

8
evidentiary support. (See Dietz v. Meisenheimer & Herron (2009)
177 Cal.App.4th 771, 799 (Dietz) [if an appellant fails to support
a claim with reasoned argument and citations to authority we
may treat that claim as waived].)
For the same reason, Koerber’s claim that Project Veritas
unreasonably inflated its request for fees is not well-taken.
Koerber insists the fees request was “clearly unreasonably
inflated” because Project Veritas’s counsel claimed to have a high
degree of skill, expertise, and experience in preparing dispositive
motions but still spent more than 200 hours on matters related to
the anti-SLAPP and fees motions. But Koerber fails to explain
why, taking into account the level of experience and skill of the
attorneys who worked on the motions, the fees request was
unreasonably inflated. For instance, Koerber doesn’t address any
of the issues raised in the anti-SLAPP and fees proceedings to
explain why Project Veritas’s attorneys should have spent less
time working on those matters in light of their experience and
expertise. It is not sufficient for Koerber to simply assert that the
fees request was inflated without supporting that claim with
reasoned argument and citations to relevant authority. (Dietz,
supra, 177 Cal.App.4th at p. 799.)
Koerber next contends the court was required to deny the
fees motion because Project Veritas improperly sought to recover
fees for time spent on matters unrelated to the anti-SLAPP and
fees motions, such as time spent researching, drafting, and filing
the demurrer and opposing the motion to tax costs. She also
claims the motion should have been denied outright because
Project Veritas redacted information from some of the billing
records submitted in support of the organization’s request for
fees. Koerber does not, however, cite to any authority to support

9
her claim that the court was required to deny the fees motion
simply because Project Veritas sought to recover fees associated
with matters that may not be related to the anti-SLAPP and fees
motions or because the organization redacted information from
some of its billing statements.4
In any event, the court has broad discretion to reduce the
amount of requested fees under section 425.16, subdivision (c),
rather than to deny a request outright, to reflect the amount of
time the court determines was reasonably spent litigating
matters related to the anti-SLAPP and fees motions. (Jackson v.
Yarbray (2009) 179 Cal.App.4th 75, 92 [“In awarding fees the
trial court is not constrained by the amount sought by the
successful moving parties”].) That is exactly what the court did
here. In calculating Project Veritas’s attorney fees award, the
court excluded any fees for matters related to the demurrer.
To the extent Koerber claims the court also should have
reduced the award for time spent on the motion to tax costs, she
fails to explain why that motion was “unrelated” to the anti-
SLAPP proceedings. Indeed, in a case like this where a defendant
obtains dismissal of all the plaintiff’s claims against it through a
successful anti-SLAPP motion, “fees incurred postjudgment [are]
incurred in connection with the [anti-SLAPP] motion.” (Vargas v.
City of Salinas (2011) 200 Cal.App.4th 1331, 1351.) Koerber,

4 Koerber cites to Serrano v. Unruh (1982) 32 Cal.3d 621 to argue the
court was required to deny Project Veritas’s attorney fees motion in its
entirety because the organization sought to recover fees that Koerber
claims were unrelated to the anti-SLAPP and attorney fees motions.
But the portion of Serrano that Koerber cites states only that a court is
permitted, not required, to deny a fees request that is unreasonably
inflated. (Id. at p. 635.)

10
therefore, has not shown the court erred in awarding Project
Veritas fees incurred in connection with opposing the motion to
tax costs.
Koerber’s argument that the court improperly awarded fees
associated with redacted information in Project Veritas’s billing
statements is also meritless. As noted above, one of the attorneys
representing Project Veritas testified in his declaration that he
completely redacted from the billing statements any matters that
were not related to the anti-SLAPP motion, the demurrer, or the
fees motion, and that those matters were not included in the
amount of fees Project Veritas sought to recover. Koerber points
to no evidence to suggest irrelevant redacted material was
included in the court’s calculation of the fees award. (Minkin,
supra, 11 Cal.App.5th at p. 954 [an appellant challenging a fees
award must affirmatively show the court abused its discretion in
calculating the award].)
As for the privileged material that was partially redacted
from the billing statements, Koerber fails to identify any specific
item the court should have excluded from the fees award.
Instead, she merely cites to a range of 31 pages in the record that
spans all the billing statements Project Veritas submitted in
support of its fees motion, some of which include redactions and
many of which do not. As the appellant, it was Koerber’s job to
parse through each item in Project Veritas’s billing statements,
explain why any particular item should not have been included in
Project Veritas’s attorney fees award, and provide a specific and
accurate citation to each page of the record that supports her
argument. That is not our job to perform in the first instance.
(See Cal. Rules of Court, rule 8.204(1)(1)(C); City of Lincoln v.
Barringer (2002) 102 Cal.App.4th 1211, 1239 [“the purpose of the

11
[California Rules of Court’s] citation requirement … is to enable
appellate justices and staff attorneys to locate relevant portions
of the record expeditiously without thumbing through and
rereading earlier portions of a brief”]; Bernard v. Hartford Fire
Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 [disapproving of the
appellant’s use of a “block page reference” to support factual
assertions].) Koerber, therefore, has not met her burden to show
the court erred in awarding Project Veritas fees associated with
the partially redacted material in its billing statements. (Minkin,
supra, 11 Cal.App.5th at p. 954.)
Koerber also insists the court should have denied the fees
motion because Project Veritas “blatantly violated” the court’s
order asking the organization to submit a supplemental brief
separating out the attorney fees incurred solely in connection
with the demurrer. In Koerber’s view, Project Veritas violated the
court’s order by increasing its fees request to include the amount
of time counsel for the organization spent preparing the
supplemental brief. This argument is not persuasive. Although
the court’s order didn’t expressly state that Project Veritas could
increase its fees request for time spent preparing the
supplemental brief, nothing in the order prohibited the
organization from doing so. In any event, the court didn’t abuse
its discretion in awarding Project Veritas fees associated with the
preparation of the supplemental brief because that work was
related to the litigation of the fees motion and is therefore
recoverable under section 425.16, subdivision (c). (See Wanland,
supra, 141 Cal.App.4th at p. 21 [a prevailing defendant may
recover all fees incurred in litigating the fee award itself].)
Koerber contends the court should have denied the fees
motion because Project Veritas’s counsel submitted a perjured

12
declaration. Specifically, Koerber points to one sentence in a
declaration executed by one of Project Veritas’s attorneys in
support of the organization’s supplemental brief, in which the
attorney states: “Communications between [Project Veritas’s]
counsel and [Koerber’s] counsel [on September 20 and October 8,
2017] are indisputably and likewise related to the anti-SLAPP
motion.” In the billing statements submitted in support of the
supplemental brief, the attorney billed .10 hours at a rate of $250
per hour (or $25) to “[r]eview and respond to [Koerber’s counsel’s]
email re communications received” on September 20, 2017. And
for the October 8, 2017 communication, the attorney billed .20
hours at $250 per hour (or $50) for “[r]eceipt and review of
multiple emails from Koerber’s counsel re settlement, demands
made, etc.” According to Koerber, the September 20 and October
8, 2017 communications were not in fact related to the anti-
SLAPP motion. Instead, Koerber claims, the September 20, 2017
billing entry concerns the attorney’s response to a cease and
desist email that Koerber’s attorney sent in response to a video of
Koerber that Project Veritas published after she filed the
underlying lawsuit. Koerber claims the October 8, 2017 billing
entry concerns only the attorney’s response to settlement
discussions initiated by Koerber’s attorney on October 7, 2017.
Koerber doesn’t argue the court should have excluded from
its fees calculation the $75 attributable to what she claims are
false statements in the declaration submitted by Project Veritas’s
attorney. Instead, she insists that because the attorney made
false statements in his declaration, all the evidence Project
Veritas submitted in support of its fees motion was “completely
suspect,” and, for that reason, the court should have denied the
motion in its entirety. We disagree.

13
 It is well-settled that the trial court is in the best position
to judge the credibility of witnesses and reviewing courts
generally won’t disturb credibility determinations on appeal.
(Estate of Young (2008) 160 Cal.App.4th 62, 76 [“We may not
reweigh the evidence and are bound by the trial court’s credibility
determinations”].) Here, the court was familiar with the parties,
their counsel, and all the proceedings leading up to and including
the attorney fees motion. In granting that motion, the court
explained that its fees calculation was based on the complexity,
difficulty, and time-consuming nature of the issues involved in
the anti-SLAPP proceedings. The court was therefore in the best
position to evaluate whether Project Veritas submitted credible
evidence in support of its fees motion. Accordingly, even if we
were to assume Koerber is correct that Project Veritas’s attorney
made a false statement about the nature of two billing entries in
his supporting declaration, the court acted well within its
discretion to find that, on the whole, Project Veritas’s supporting
evidence was credible. We will not disturb that determination on
appeal. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959,
968 [“we defer to the trier of fact on issues of credibility”].)
In sum, Koerber has not shown the court abused its
discretion in awarding Project Veritas $63,970 in attorney fees.
2. The Costs Award
Koerber also challenges the court’s denial of her motion to
tax costs. She contends the court erred when it did not tax costs
associated with the demurrer, court reporter fees, and attorney
services charges. Once again, we disagree.

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 2.1. Applicable Law and Standard of Review
Under section 1032, “a prevailing party is entitled as a
matter of right to recover costs in any action or proceeding.” (§
1032, subd. (b).) Section 1033.5 identifies which costs are
allowable (§ 1033.5, subd.(a)) and which costs are prohibited
unless otherwise authorized by law (§ 1033.5, subd. (b)). “An item
not specifically allowable under subdivision (a) nor prohibited
under subdivision (b) may nevertheless be recoverable in the
discretion of the court if ‘reasonably necessary to the conduct of
the litigation rather than merely convenient or beneficial to its
preparation.’ (§ 1033.5, subd. (c)(2).)” (Ladas v. California State
Auto. Assn. (1993) 19 Cal.App.4th 761, 773–774 (Ladas).)
When items listed in a memorandum of costs are expressly
allowed by statute and appear proper on their face, “ ‘the burden
is on the objecting party to show [the costs] to be unnecessary or
unreasonable.’ [Citation.]” (Foothill-De Anza Community College
Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29 (Foothill).) But
when costs are not expressly authorized by statute, the burden is
on the party seeking to recover the costs to show they were
reasonable and necessary to the litigation. (Ibid.) “Whether a cost
item was reasonably necessary to the litigation presents a
question of fact for the trial court and its decision is reviewed for
abuse of discretion.” (Ladas, supra, 19 Cal.App.4th at p. 774.)
2.2. Filing and Motion Fees
Koerber argues the court erred in awarding Project Veritas
$160 in filing and motion fees associated with: (1) the demurrer
filed in October 2017; (2) an ex parte application filed in
November 2017; and (3) two documents concerning the
rescheduling of the hearing on the demurrer, one filed in

15
November 2017 and the other filed in January 2018. Under
section 1033.5, subd. (a)(1), a prevailing party is entitled to
recover costs for “[f]iling, motion, and jury fees.”
Koerber does not dispute that the challenged costs fell
within the scope of section 1033.5, subdivision (a)(1). Accordingly,
those costs were presumptively recoverable under that statute.
(See Foothill, supra, 158 Cal.App.4th at p. 29.) Koerber
nevertheless argues the costs should have been excluded as
unreasonable and unnecessary because Project Veritas had no
reason to file a demurrer, or any other documents related to the
demurrer, once it filed the anti-SLAPP motion. But Koerber has
not included copies of the demurrer, the ex parte application, or
the rescheduling documents in the record for this appeal, and she
has not asked us to take judicial notice of any of the records from
her prior appeals. Consequently, we are unable to review any of
the documents giving rise to the challenged costs to determine
whether it was reasonably necessary to file them. Koerber,
therefore, has not met her burden on appeal to show the court
abused its discretion in awarding Project Veritas costs associated
with the filing of the demurrer, the ex parte application, and the
two documents concerning the rescheduling of the hearing on the
demurrer. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296
(Maria P.) [“[i]t is the burden of the party challenging the fee
award on appeal to provide an adequate record to assess error,”
and any failure to furnish an adequate record requires the claim
to be resolved against the challenging party].)
2.3. Reporter Fees
Koerber also contends the court erred when it awarded
Project Veritas $830 in court reporter fees. A prevailing party is
entitled to recover costs for the services of an official court

16
reporter. (§ 1033.5, subd. (a)(11) [court reporter fees recoverable
as costs as established by statute]; Gov. Code, § 68086 subd. (c)
[“[t]he costs for the services of the official court reporter shall be
recoverable as taxable costs by the prevailing party as otherwise
provided by law”].) Koerber argues court reporter fees were not
recoverable in this case because “no ‘official’ reporter [was]
present.” We reject this argument for a couple of reasons.
First, Koerber did not preserve this argument for appeal.
Although she moved to tax Project Veritas’s request for court
reporter fees, she only challenged that request in the trial court
on the following grounds: (1) the costs are precluded by section
1033.5, subdivisions (b)(3) and (b)(5);5 (2) the costs were
duplicative; and (3) the costs were not reasonably necessary to
the litigation. Koerber never challenged Project Veritas’s request
because no official reporter was present. She has therefore
forfeited that argument on appeal. (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163
Cal.App.4th 550, 564 (Premier Medical) [“ ‘ “ ‘issues raised for the
first time on appeal which were not litigated in the trial court are
waived’ ” ’ ”].)
Second, even assuming Koerber preserved this argument
below, she has not substantiated it on appeal. Although Koerber

5 Section 1033.5, subdivision (b)(3) is not applicable to Project Veritas’s
request to recover reporter fees since that subdivision precludes only
the recovery of “[p]ostage, telephone, and photocopying charges, except
for exhibits.” Likewise, section 1033.5, subdivision (b)(5) is not
applicable in this case because Project Veritas never sought to recover
the costs for obtaining transcripts not ordered by the court. (See §
1033.5, subd. (b)(5) [precluding recovery of costs for “[t]ranscripts of
court proceedings not ordered by the court”].)

17
claims “no ‘official’ reporter” was present at the hearings for
which Project Veritas sought to recover reporter fees, she fails to
cite to any part of the record supporting that claim. (Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [“ ‘This court is
not required to discuss or consider points which are not argued or
which are not supported by citation to authorities or the record.’
”].) Koerber also has not provided an adequate record to review
her claim. In its memorandum of costs, Project Veritas sought to
recover a combined $830 in court reporter’s fees for two hearings:
one on December 6, 2017 and the other on December 14, 2017.
Koerber, however, has not included as part of the record for this
appeal copies of the transcripts or the court’s minute orders from
either of those hearings. Thus, nothing in the record supports
Koerber’s claim that no official reporter was present at the
hearings for which Project Veritas sought to recover court
reporter fees. (See Maria P., supra, 43 Cal.3d at pp. 1295–1296.)
In her reply brief, Koerber argues for the first time on
appeal that the court erred in awarding court reporter fees under
“Government Code §68086(a)(4)” because there is no subdivision
(a)(4) in that statute.6 This argument is not properly before us
because it was not raised in Koerber’s opening brief. (REO
Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489,
500 [“This court will not consider points raised for the first time
in a reply brief for the obvious reason that opposing counsel has
not been given the opportunity to address those points”].) In any

6Although Koerber points out in her opening brief that Project Veritas
argued reporter fees were recoverable under subdivision “Gov. Code
§68086(a)(4),” she did not argue it was error for the court to award fees
under that nonexistent subdivision.

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event, the record doesn’t support this argument. Koerber cites
only to Project Veritas’s opposition to the motion to tax costs, in
which the organization appears to have made a typographical
error arguing that reporter fees were authorized under “Gov.
Code §68086(a)(4).” But nothing in the record suggests the court
awarded Project Veritas reporter fees under the wrong statute.
Regardless, as noted above, Government Code section 68086,
subdivision (c), expressly authorizes the prevailing party in an
action to recover the costs of an official court reporter.
For the foregoing reasons, Koerber has failed to show the
court abused its discretion in awarding Project Veritas $830 in
court reporter fees.
2.4. Attorney Service Charges
Finally, Koerber argues the court erred in awarding Project
Veritas the costs for attorney service charges for court filings and
deliveries because the organization did not present sworn
declarations justifying such costs and, to the extent any of those
costs are attributable to “postage charges,” they are expressly
prohibited by section 1033.5, subdivision (b)(3). This argument
also lacks merit.
In the trial court, Koerber argued only that attorney service
charges are, as a category, not recoverable as costs under section
1033.5, an argument the court correctly rejected. (Foothill, supra,
158 Cal.App.4th at p. 30 [a court has discretion to award courier
or messenger fees if they are “ ‘reasonably necessary to the
litigation’ ”].) She never argued the costs were not recoverable
because Project Veritas did not file a separate declaration
justifying the need for the attorney service charges.
Consequently, Koerber has forfeited this argument on appeal.
(Premier Medical, supra, 163 Cal.App.4th at p. 564.) To the

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extent Koerber argues the court should have denied Project
Veritas’s request to recover attorney service charges because they
were incurred in lieu of “postage charges” (see § 1033.5, subd.
(b)(3)), nothing in the record supports that argument.
Accordingly, Koerber has not shown the court erred in awarding
Project Veritas costs for attorney service charges.

DISPOSITION

The postjudgment order is affirmed. Project Veritas shall
recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

DHANIDINA, J.

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